Berkeley: A federal appeals court has said it cannot decide if California`s gay marriage ban is
constitutional until the state`s highest court weighs in on whether Proposition 8`s sponsors have the authority to defend the measure.
A three-judge panel of the 9th US Circuit Court of Appeals issued an order asking the California Supreme Court to decide if ballot proposition backers can step in to defend voter-approved initiatives in court when state officials refuse to do so.
The high court does not have to respond to the 9th Circuit panel`s order, but legal experts expect it will. The panel suggested that without the state court`s input, it would have to dismiss the case.
"This court is obligated to ensure that it has jurisdiction over this appeal before proceeding to the
important constitutional questions it presents, and we must dismiss the appeal if we lack jurisdiction," the judges wrote.
The panel indicated during oral arguments last month that it might seek the state court`s guidance because the question of who is eligible to fight for Proposition 8 remains unsettled under both federal and California law.
After a San Francisco trial judge struck down the ban in August as a violation of gay Californians` civil rights, former Gov. Arnold Schwarzenegger and then-Attorney General Jerry Brown both took the unusual step of refusing to appeal the decision.
"We are now convinced that proponents` claim to standing depends on proponents` particularized interests created by state law or their authority under state law to defend the constitutionality of the initiative," the panel said. "We therefore request clarification in order to determine whether we have jurisdiction to decide this case."
The panel also rejected attempts by officials from conservative Imperial County to intervene as alternate
If the state Supreme Court determines that the coalition of religious and conservative groups that sponsored Proposition 8 lack the prerogative to defend the measure, it is unclear whether the ban would be unenforceable or remain in effect.